Critical Review on the Manab Pacher Protirodh O Damon Ain, 2012 With Some Recommendations

- Md. Tajul Islam

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Published On - December 15, 2016 [Vol. 5, Jul - Dec, 2016]

Executive summary:

Enactment of Manab Pacher Protirodh O Damon Ain Act, 2012 was undoubtedly a historic step towards digitizing world to combat against the prevention of human trafficking. It provides legal recognition and security of preventing and deterring human trafficking but several provisions of this law are too vague or unnecessarily criminalize legitimate expression. The same is true of provisions granting investigatory powers to the authorities or imposing obligations on service providers for the purposes of assisting the investigation of Human Trafficking. Procedural or public interest safeguards are also missing. We therefore recommend that a number of provisions must be either repealed or substantially reviewed to be compatible with international standards in this area.

Introduction: The Manab Pacher Protirodh O Damon Ain[i] (The Prevention and Suppression of Human Trafficking Act) was enacted on the 20th February 2012 and it came in to force at once. Human trafficking can be identified as one of the worst and most pervasive form of violation of human rights. It is terrifying offence against society, state as well as humanity. Moreover, it can be said that human trafficking is remarkably a heinous and inhuman offence. It is a major social and political concern which should be resisted and prevented. Our constitution provides provisions as to fundamental human rights. According to Article 27[ii] all citizens are equal before law and are entitled to equal protection of law. Article 32[iii] provides that no person shall be deprived of life or personal liberty, save in accordance with law. According to Article 34[iv], all forms of forced Labour are prohibited and any contravention of this provision shall be an offence punishable by law. To meet the Constitutional commitment existing provisions of Penal Code of 1860, Nari-O-Shishu Nirjatan Damon Ain, 2000 etc. largely failed to ensure sufficient relief against offences related to human trafficking. Under such circumstances the Manab Pacher Protirodh O Damon Ain, 2012 was enacted to make provision to prevent and suppress human trafficking and to ensure the protection of victims of the offence of human trafficking and their rights and to ensure their safe migration and to prevent and suppress the transnational-organized-crimes relating to human trafficking. The Act consists of 48 sections and 7 chapters. To supplement and fulfill the objectives of the Act, Manab Pachar Protirodh O Damon Bidhimala, 2013 was formulated by the Government under section 46 of the Act. The unique features of the Act are provisions relating to prevention and suppression of the transnational-organized-crimes of human trafficking and special provisions of assistance, protection and rehabilitation of victims of human trafficking and witnesses.

Main objectives of this Act are-

i. to prevent and suppress human trafficking.

ii. to ensure the protection of victims of the offence of human trafficking and their rights.

iii. to ensure safe migration of the victims.

iv. to prevent and suppress the transnational organized crimes relating to human trafficking

v. to protect fundamental human rights of the people.

vi. to provide exemplary punishment against offenders of human trafficking.

Historical Background:

Before going to review the statute relating to Manab Pacher Protirodh O Damaon Ain, 2012, we would like to give a short history with regard to offence of human trafficking.

Earliest form of global human trafficking began with the African slave trade. Since the American and European continents were involved as buyers and the different African groups were traders and middlemen, it is first known International flow of human trafficking. Later, white slavery comes into light. It means procurement by use of force, deceit or drugs of a white woman or girl against her will for prostitution. In 1904[v], the “International Agreement of the Suppression of White Slave Traffic,” the first internal agreement on human trafficking was signed.

After First World War in 1921[vi], 33 countries at a League of Nations international conference signed the “International Convention for the Suppression of Traffic in Women and Children.” Then after the Second World War, the United Nations adopted the “United Nations Protocol to prevent, suppress and punish trafficking in Persons, Especially women and children.” It was the first agreement that acknowledged modern day slavery, as well as the possibility of men being victims of human trafficking. The definition was also expanded to organ harvesting, slavery and forced labour migration. Presently Governments of different states and non-government organizations are working together to combat human trafficking.

Some salient features of the Act:-

a) It was the first Act that was enacted keeping conformity with the international standards to prevent human trafficking.

b) The Act provides for an inclusive definition of human trafficking.

c) The Act applies inter territory including extra territory.

d) The Act has provided for establishment of an Anti-Human-Trafficking Offence Tribunal for the speedy trial of the trafficking offence.

e) Police can act proactively with its use.

f) It has provided an integrated pack of protective measures for the victim of trafficking, enacting provisions for identification and   rescue of victims and for their repatriation, return and rehabilitation.

g) Tribunal may issue any protective order and direction for the interest of justice.

h) The Act sets out provisions regarding state-to-state mutual legal assistance.

i) Civil Suit for compensation besides Criminal Proceeding is the significant assertion of this Act.

j) The Act provides for the installation of a fund to support the victims.

The Act at a glance:[vii]

1) Sections- 1, 2, 3 and 4 include the short title, definitions, overriding effect of the Act and the applicability of the Code of Criminal Procedure etc.

2) Section 5 sets provisions as to extra territorial application and effectiveness of the Act.

3) Sections-6 to 15[viii] provides provisions relating to human trafficking and ancillary offences and penalties.

i) 6- Penalty for human trafficking – Not exceeding imprisonment for life but not less than 5 years rigorous imprisonment and fine not less than Tk.50,000/-.

ii) 7- Penalty for organized offence of human trafficking-death sentence or imprisonment for life or R.I. for not less than 7 years and fine not less than Tk.5 lacs.

iii) Section 8- Penalty for instigation , conspiring or attempting to commit an offence- Rigorous Imprisonment (Hereafter R.I.) for a term not exceeding 7 years but not less than 3 years and fine not less than Tk.20,000/.

iv) Section 9- penalty for forced or bonded labour or service- R.I. for a term not exceeding 12 years but not less than 5 years and fine not less than Tk.50,000/.

v) Section 10- Penalty for kidnapping, concealing and confining any other person with intent to commit the offence of human trafficking – R.I. for a term not exceeding 10 years but not less than 5 years and fine not less than Tk.20,000/.

vi) Penalty for stealing or kidnapping new-born baby with intent to commit the offence of human trafficking—Imprisonment for life or R.I. for not less than 5 years and fine not less than Tk.50,000/.

vii) Section 11-Penalty for importing or transferring for prostitution or any other form of sexual exploitation or oppression—R.I. for a term not exceeding 7 years but not less than 5 years and fine not less than Tk.50,000/.

viii) Section 12- Penalty for keeping a brothel or allowing any place to be used as a brothel—R.I. for a term not exceeding 5 years but not less than 3 years and fine not less than Tk.20,000/.

ix) Section 13- Penalty for soliciting for the purpose of prostitution—R.I. for a term not exceeding 3 years or fine not exceeding Tk.20,000/ or both.

x) Section 14- Penalty for threatening the victim or witnesses—R.I. for a term not exceeding 5 years but not less than 3 years and fine not less than Tk.20,000/.

xi) Section 15- Penalty for filing false case or complaint—R.I. for a term not exceeding 5 years but not less than 2 years and fine not less than Tk.20,000/-.

4) Section 16 provides that offences under this Act are cognizable, non-bailable and non-compoundable.

5) Section -17 deals with procedure of filing of complaints and appointment of prosecutor (P.P). Any person may a file a complaint to the police or to the Tribunal.

6) Section- -18 provides legal presumption as to commission of offence.

7) Section -19 states the procedure of investigation.

i) A police officer not below the rank of sub-inspector shall investigate an offence under this Act.

ii) Subject to the provision of section 20, investigation shall be concluded within 90 workings days from the date of filing or reception of reference from the Tribunal.

iii) If the investigation is not concluded within the aforesaid time, the Investigation Officer (Hereafter I.O.) shall before at least three days prior to the end of the time limit apply to his controlling officer or the tribunal as the case may be, for an extension of period –Being satisfied 30 working days may be extended for investigation.

iv) In case of transnational investigation, only the Tribunal may extend reasonable time if it thinks fit.

v) In case of investigation of transnational offence, a special investigation team with the permission of the Tribunal may go overseas for scrutiny of evidences.

 

8) Section- 20[ix] provides the procedure of preventive search and seizure.

i) A police officer not below the rank of SI can, with the approval or direction of his controlling authority, conduct preventive search and seize articles, information or documents likely to be used for the commission of any offence under the Act.

ii) A search can be conducted even without warrant in presence of two or more elite inhabitants of the area if there are reasonable grounds that the offence will occur really or any evidence will be destroyed due to delay in collecting S/W.

iii) Search should be conducted in accordance with the provision of section 103 of Cr.P.C and showing respect to the human rights and dignity of the person whose body and property will be searched. In case of search of a woman, a female police officer or a female probation officer must be present with the search party.

iv) A report describing reasons and result of search must be prepared within 72 hours of completion thereof and a copy of the same should be sent to the concerned Magistrate and the Tribunal having jurisdiction to try the relevant offence through electronic or any other means.

9) Section- 21 sets provisions as to establishment of Manab Pacher Aporadh Damon Tribunal which consists of a judge of the rank of a Sessions Judge or Additional Sessions Judge. The Government has assigned and empowered the Nari O Shishu Nirjaton Daman Tribunal as the Manab Pacher Aporadh Damon Tribunal.

 

10) Section-22[x] describes powers and jurisdictions of the Tribunal.

The powers of the Tribunal are-

i) all the powers of a Court of Sessions

ii) to issue any protective order and direct any person or institution to submit any report , document or register to the Tribunal.

iii) to record the statements of any witness or examine him at any place directly or through any electronic means

iv) to accept any official statements or report of any public officer or employee as evidence exempting him to depose before the Tribunal.

v) to refer any victim of human trafficking under the custody of any public or private protective home or under the custody of any competent person or organization including the Social Welfare Department.

vi) to grant bail.

11) Section 23 deals with Tribunal’s power to direct further investigation.

12) Section 24 is related to time limit of trial. 180 working days from the date of framing charge.

13) Section-25 deals with camera trial.

14) Section- 26 is related to appointment of interpreter.

15) Section-27 describes provisions as to seizure, freezing and confiscation of property and extra-territorial injunction.The Tribunal may pass an order:

i) to seize, freeze or confiscate any movable or immovable property acquired by the accused through the commission of an offence under this Act.

ii) to attach any house, land or vehicle used for committing or attempting any offence under the Act.

iii) to confiscate the property acquired by the convict through the commission of the offence and such confiscated property shall be deposited to the Human Trafficking Prevention Fund.

iv) to freeze and attach the proceeds of crime located in a foreign country and any property subsequently acquired by the accused persons through such property.

16) Section- 28 deals with order of tribunal regarding compensation.

17) Section 29 relates to admissibility of foreign documents, written proofs or materials. Any foreign written document, order or judgment of the court, report of investigation or declaration of government, if duly sent, signed and authenticated by a competent authority shall be admissible as evidence before the Tribunal upon attestation by the concerned country’s Embassy.

18) Section-30 describes provisions with regard to admissibility of electronic proofs. Any evidence held in audio-visual instruments or through any electronic communication shall, subject to the satisfaction of the Tribunal, be admissible as evidence.

19) Secntion-31 is related to filing of appeal which has to be filed before the Hon’ble High Court Division within 30 days from the date of order or judgment or sentence.

20) Section 32 deals with identification, rescue, repatriation and rehabilitation of the victims of human trafficking.

21) Section 33 relates to repatriation and return of human trafficking.

22) Section 34 deals with provision as to providing with information to the victims of human trafficking and to the public generally as to the actions taken against the traffickers and of the stages of the concerned criminal case.

23) Section 35 describes provisions as to the establishment of protective homes and rehabilitation center.

24) Section 36 describes provisions as to protection, rehabilitation and social integration of the victims of human trafficking.

25) Section 37 narrates provisions as to provisions regarding the protection of victims or affected person and witnesses in criminal trial.

26) Section 38 provides provision for protection of the rights of child victims and witnesses.

27) Section 39 gives the victims right to institute civil suit for compensation.

28) Section 40 deals with financial assistance to the victim of human trafficking .

29) Section 41 refers to joint or mutual legal assistance and cooperation to suppress and prevent human trafficking.

30) Section 42 and 43 provide provision for establishment of Human Trafficking Prevention Fund and National Anti-Human Trafficking Authority respectively.

31) Section 44 deals with provision as to offences by companies or firms.

32) Section 45 – provision to apply the principle of equality and to prevent abuse of power.

33) Section 46 empowers the government to make rules.

34) Section 47 repealed The Suppression of Immoral Traffic Act, 1933 and sections 5 & 6 of the Nari O Shishu Nirjatan Daman Ain, 2000.

35) Section 48 urges for publication of an Authentic English Text of the Act.

Criticism:

1) Though the Act came into force from 20 February, 2012, no separate Manab Pacher Aporadh Damon Tribunal has been established under sub-section (1) of section 21 of this Act as yet.

2) Under Section- 20 for preventing the offence police can conduct preventive search and seizure for reasonable grounds. But there are no criteria to determine such reasonable grounds.

3) Section-23 indicates Tribunal’s power to direct further investigation, but there is no time limit regarding this matter.

4) Section-24 States that when the trial is not concluded within 180 working days, the Tribunal within 10 working days is bound to send a report to the High Court Division of the Supreme Court, explaining the reason. But there is no provision as to time limit about next trial of such case.

5) Section-19 deals with investigation and proactive inquiry. But the powers and duties of investigation officer or inquiry officer regarding these matters are not specified enough.

Recommendations:

1) Sec 28- of this Act, states that, Tribunal may pass an order to pay a reasonable amount of compensation to pay the victim. This section should be inserted in chapter-II to maintain consistency and relevancy.

2) Time limit to conduct further investigation under Sec- 23 of this Act should be specified.

3) There should be enough number of protective homes and rehabilitation centers to support victims.

4) Government should take necessary steps to establish Human Trafficking Prevention Fund as soon as possible.

Conclusion:

Manab Pachar Protirodh O Damon Ain, 2012 can be regarded in Bangladesh as first international standard legislation as well as being comprehensive and updated, to be consider as anti-human trafficking instrument, but the challenges will remain in its implementation. So, the loopholes of this Act should be removed as early as possible. We hope that this Act would be a helpful instrument to prevent and suppress human trafficking and to punish the offenders who commit the offence under this provision. Human Trafficking means the selling or buying, recruiting or receiving, deporting or transferring, sending or confining or harboring either inside or outside of the territory of Bangladesh of any person for the purpose of sexual exploitation or oppression, labour exploitation or any other form of exploitation or oppression by means of threat or use of force. The law also includes deception, or abuse of his or her socio-economic or environmental or other types of vulnerability; or giving or receiving money or benefit to procure the consent of a person for having control over him or her.

[i] Act No.3 of 2012

[ii] Article 27 of the Peoples Republic of Bangladesh

[iii] Article 32 of the Peoples Republic of Bangladesh

[iv] Supra

[v] The International Agreement of the Suppression of white slave trafficked summit 1904

[vi] The 2nd World War History page-33

[vii] The Sections of Manob Pachar Protirodh Daman Ain1-48

[viii] Supra Section 6-15 relating to the Human Trafficking

[ix] Section- 20 provides the procedure of preventive search and seizure.

[x] Section-22 describes powers and jurisdictions of the Tribunal

About The Writer

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Md. Tajul Islam

Joint District Judge

Thakurgaon

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